태아의 헌법상 지위

Abstract

There is a clear difference between the majority opinion and the minority opinion of the constitutional court about Grounds and extent of Protection of the foetal life. The majority opinion have very pronounced views that the Right to Life is recognized after a fetus is implanted in the mother's womb. But according to the minority opinion the Right to Life is based on viablity. The minority opinion is similar to that of Roe v. Wade by the United States Supreme Court on the issue of abortion. The minority opinion created a trimester framework to balance the fundamental right to autonomous decision: protecting the mother's health and protecting human life. In the first trimester, when it was believed that the procedure was safer than childbirth. From approximately the end of the first trimester until fetal viability, the interest in protecting the health of the mother would become compelling. At the point of viability, which the Court believed to be in the third trimester, the state's interest in potential life would become compelling, and the state could regulate abortion to protect life. In this article I argue that the Right to Life should be based on the sensory ability. The sensory capacity generates after existence of brain. When man consider the existence of brain as the reason and start point of the right to life, the early abortion should be allowed. The majority opinion asserted that the fetal right to life begins at conception, and should therefore be protected by the Constitution. The minority opinion recognized the fetal right to life after viability which generates in the third trimester. Compared with two opinions of the constitutional court I assert that the Right to Life is based on the sensory ability which generates after existence of brain.